Publication Date

Keywords

Disciplines

Estates and Trusts | Property Law and Real Estate

Abstract

The 1990 revision of the Uniform Probate Code ("UPC") marks the second stage of probate reform in the second half of this century. The first stage was the adoption of the original UPC. While it included some changes in the substantive law of wills, its primary objective was to simplify probate procedure. The second stage, by contrast, focuses almost entirely on the substantive law of wills and will substitutes. It changes several of the primary rules of wills law, including the traditional rule requiring strict compliance with execution formalities. It also makes significant changes in the subsidiary rules of wills law, including the antilapse and revocation on divorce rules. The overall effect of these changes is to reduce the level of formality in the American law of wills. Along with other emerging doctrinal changes, the 1990 UPC signals a shift in wills law toward greater reliance on extrinsic evidence and, more generally, greater informality. After these changes are eventually implemented, wills law no longer will be regarded as the last bastion of high formality.

In this brief Article, I will discuss the decline of formality in wills law in the context of the doctrine of ademption by extinction. Section 2-606 of the 1990 UPC overtly abandons the traditional formal approach to resolving issues concerning ademption of devises. It explicitly invites courts to inquire into the testator's intent on the basis of extrinsic evidence rather than limiting the inquiry to the terms of the will, as the traditional approach does. By opening up ademption analysis to extrinsic evidence regarding the testator's subjective preferences, new section 2-606 signals an apparent shift from what Carol Rose calls a "crystal" rule to a "mud" rule.

This Article makes two basic points. The first is that the shift from the formal "identity" rule to the informal "intent" standard is less dramatic than initially appears. Although the new version of section 2-606 will produce some differences in result, the traditional judicial approach to ademption questions provided courts with considerable room to avoid plainly intent-frustrating results. Section 2-606 represents a sensible doctrinal reform that incrementally changes the law in a way that is likely to strengthen the extent to which wills law reflects rather than frustrates testamentary preferences.

The second point is explanatory. To the extent that section 2-606 does represent an actual shift to less formality on this question, the change is the result of endogenous factors. Section 2-606 occupies only a small corner of new article II, but it provides a useful opportunity to discuss the circumstances that have led to relaxing the degree of formality in wills law.